As the battle is joined at the U.S. Supreme Court over the University of Michigan’s admissions policies, it will be revealing to see whether the State of New York enters the fray. Over the years, New York has managed to stay on the outskirts of the affirmative action debate. To the extent that New York’s public higher education system has lifted minority applicants above others in order to promote diversity, it has done so in a less blunt fashion than other states, avoiding the litigation that has hit places such as Michigan and California. However, with the High Court set to rewrite the rules of whether and how it is acceptable to take the race of an applicant into account, everyone wants to weigh in. (With the possible exception of Bush aide Karl Rove, who may be more concerned about the political fallout of the Trent Lott affair than about letting the solicitor general offer a brief on one of the crucial constitutional cases of the generation.)

It’s unclear whether the State University of New York and City University of New York systems use racial preferences comparable to those employed at Michigan. In undergraduate admissions at Michigan certain school-approved “underrepresented minorities,” such as blacks and Latinos, but not others, such as Asians or Italian-Americans, have 20 points automatically added to a “Selection Index” of 150 points. Minority law school applicants are favored by a similar magnitude but with a less crudely numeric system. That informal quotas or preferences are used has been denied by New York state. But the University of Michigan also denied the use of such methods until the details of its admissions system came out in response to a Michigan Freedom of Information Act request. University of Michigan’s former president and law school dean, Lee Bollinger, is now president of Columbia University.

Facing the possibility that the Supreme Court might indirectly declare New York’s admissions policies — which undoubtedly take race into account one way or another — unconstitutional or illegal, some may believe that it is necessary for the state actively to defend preferences based on race by submitting an amicus brief in the Michigan affair through the attorney general’s office. That would be a blemish on New York’s history of being a leader on civil rights issues. It seems clear that the High Court will continue to move to circumscribe the sway that race can hold in the public square, and it would be a shame for New York to cling to the old regime as the new is ushered in.

The 1978 decision of the Supreme Court in University of California v. Bakke has long required revisiting. It leaves no clear guideposts as to how race should be treated in college admissions. Race can be taken into account, under Bakke, if a policy (1) serves a compelling state interest, and (2) is narrowly tailored to serve that compelling interest. What exactly constitutes a compelling state interest is left unclear — not to mention what “narrowly tailored” means. Though some, including the University of Michigan, argue that “diversity” is a compelling state interest, their flimsy authority is a section of the Bakke decision written by Justice Powell in which none of his eight colleagues joined. This has left the University of Michigan arguing that diversity improves the quality of the education that it provides.

The arguments on race in college admissions are by now so well-worn that they needn’t be rehearsed here: the stigma imposed on minorities who would have gotten in without preferences; the injustice of a remedy for discrimination against American blacks being used to support more recent immigrants from other minority groups; the way they cut against the overriding goal of judging people by their character, not their skin color.

Given the problematic nature of racial preferences, which cannot ultimately be severed from unconstitutional discrimination, New York would do best to stick to the original meaning of the term affirmative action — taking affirmative actions to help those disadvantaged because of their race. SUNY already aggressively recruits at high schools with high minority enrollment and offers generous scholarships. At private universities, less preference could be given to student-athletes or those whose parents attended. And, to include a reform at the ground level, educational opportunities in the form of school vouchers could help those, often minorities, trapped in the worst public schools.

There’s no question that standardized test scores and grades can give less than the full picture. If the admissions teams made the effort to measure obstacles overcome by taking into account factors more complex than skin color alone, the system would be fairer and less legally fraught. To the extent race itself becomes less of an obstacle, the modern-day justification for the preference will diminish.